What are interesting facts about software patents

Business software

Hartmut Pilch sounded the alarm. The European Patent Office (EPA) wants to persuade the European governments to make software patentable in principle. In an open letter from the Association for a Free Information Infrastructure (FFII), he warned of the “devastating effects of the EPO's expansive patent policy on innovation, competition, prosperity, education and civil rights”.

That was in August 2000. Pilch's fears, who is one of the bitterest opponents of software patents, did not come true for the time being. In November 2000, the Diplomatic Conference on the Revision of the European Patent Convention (EPC) rejected an amendment. The EU Commission's draft directive for software patents, which has been announced several times, is still a long time coming.

According to Article 52 of the EPC, which has also been incorporated into the German Patent Act, programs for data processing per se are exempt from patentability. In principle, anything new, inventive and commercially usable can be patented. In contrast to the legal situation in the USA or Japan, however, German law requires the attribute of technicality for a patent object (see box "Technicality and patents"). In the case of an isolated software system, this is negated per se.

In the European economic area, software should primarily be protected by copyright. Nevertheless, both the German and the European patent office have issued software patents on a large scale. The officials usually interpret the term technicality generously. Bernd Lutterbeck from the Department of Computer Science at the Technical University of Berlin estimates the number of software patents granted in Germany at around 1200 in the year 2000. "German, European and American courts have long recognized the patent protection of software," writes the scientist in an order from the Federal Ministry of Economics given report *.

Proponents of patents see the planned changes merely as an adaptation of the legal regulations to current legal practice. Critics, especially those from the open source community, are up against the efforts.

Without software patents, European manufacturers would fall behind their competitors in the USA and Japan, is a central argument of the advocates. Copyright is not sufficient to protect against imitators. "Copyright protection is actually not worth much for computer programs," says Munich patent attorney Jürgen Betten.

Copyright protects a specific work, for example the source text or the executable binary code. This right already arises with the creation of the work. In contrast, the protection from patent law relates to the exclusive commercial use of the abstract ideas and concepts behind a specific work. A program code would be protected by copyright, but the idea behind it would not. It could be copied if the code was modified accordingly.

“In practice, copyright only extends to the copy of the source code; that means, small changes can be outside the copyright ”, explains Betten. “The intelligent infringer bypasses copyright law.” That is why patent protection is particularly important for small and medium-sized enterprises (SMEs).

Jörg Tauss, SPD member of the Bundestag and chairman of the “New Media” subcommittee, suspects other interests. “I am extremely suspicious of patent attorneys. This is not about the protection of patents, this is about protecting your own cash register. ”He knows many smaller companies that are the target:“ The patenting of software is supposed to kill us. ”

The companies feared that one day they would be confronted with a request from a group to refrain from certain developments because parts of them were patented. “The little ones can't oversee the international scene at all. You cannot be expected to conduct ongoing research into possible patent infringements. "A small or medium-sized company can simply no longer manage that."

Daniel Riek, member of the board of the Live Linux Verband eV, has similar concerns: If the patent density increases, it will become more and more important for companies to carefully check whether existing patents are being infringed before implementing new software or an Internet-based business method could. "Here software companies are dependent on the services of experienced researchers and patent attorneys, unless they have their own patent department." This threatened enormous additional costs and, under certain circumstances, nasty surprises.

The argument that software patents create the necessary legal security for SMEs is countered by open source supporter Pilch: "The existence of hundreds of thousands of patents means legal uncertainty." A company can never be sure whether it is infringing patents in any area. The lower the hurdles for patent acquisition, the more legal uncertainty arises. "Even when I look at the database with the many thousands of patents, I still don't know which ones are currently in preparation and which will be awarded."

“The devil is being painted on the wall here,” said Betten. “You don't get a patent for a few lines of code.” The aim of the change in the law is to remove ambiguities. These exist only for SMEs and individual inventors who allow themselves to be deterred by the wording of the law from applying for patents. Large companies, on the other hand, have long applied for patents and never asked whether that was a problem.

Swantje Weber-Cludius, a consultant at the Federal Ministry of Economics, sees difficulties for SMEs in connection with software patents. However, it restricts: "These are structural problems that we not only have in the software sector, but also in principle in smaller companies." For example, small businesses would be supported with regard to costs and infrastructures would be created for the patent system.

To this end, the federal government and the federal states have set up around 25 patent information centers in Germany, for example. Weber-Cludius: “You will still not be able to fully compensate for the disadvantages.” Ultimately, you would have to abolish the entire patent system, which, however, would not make sense.

The copyright law has been adapted to the peculiarities of computer programs since 1985, argues patent opponent Pilch. This also guarantees a certain protection against plagiarism and imitation. In addition, the law could still be further developed. “The software industry has become very rich.” In contrast, a “lawyers lobby” has been trying to expand patent law since the 1970s in order to “turn a lucrative industry into a battlefield for their professional activity”.

At least as controversial as the legal issues is the argument that software patents promote technical innovations. The focus is on the incentive theory, which the lawyer Rudolf Busse outlined in 1999: "The incentive theory aims to promote technical progress through the prospect of a corresponding return and to stabilize the inventor's expectations of profits through temporary patent protection."

The economic justification for patents is therefore to protect potential innovators (inventors) from imitators and to provide the incentive to recoup the costs of innovation. If the inventor is exposed to the risk of copying, he can not generate enough income to cover his costs. Therefore, without patent protection, he might forego inventions entirely, even if their social benefits could outweigh the costs.

Other experts counter that the rate of innovation on the software markets is greater, the less it is hindered by patents and other monopolies. In a study presented in December 1999, the engineer James Bessin and the Harvard economist Eric Maskin presented a model that supports this thesis: In the software and computer industry there are good reasons to assume that imitation promotes innovation, while far-reaching ones Patents were a hindrance.

Innovations in these industries arise both sequentially and complementarily, the authors argue. Sequential in this context means that each subsequent invention builds on a previous one, similar to the way in which Windows built on DOS. At the same time, a complementary approach can be observed, with each potential innovator following a slightly different line of research. This increases the overall likelihood of achieving a specific goal within a given time.

The Berlin university professor Lutterbeck concludes in his report: "With the help of this model, the authors show that the expenditures for research and development of American companies have fallen after the courts have recognized the patentability of software." Patent protection has reduced the speed of innovation. These results have been substantiated by further investigations. At the symposium "Software patents - the motor or brake on the economy" at the University of Frankfurt, Maskin said: "We have a dramatic increase in patent applications in the USA, but not a dramatic increase in inventions."

The award practice of the authorities has also come under criticism from the patent opponents. “The level of inventiveness has to be more than zero, that's enough,” complains Pilch. As soon as something is new, it can be patented. US registries are considered particularly generous. They have been granting patents on algorithms and business models since the 1980s.

A prominent example is provided by the one-click patent of the online department store Amazon.com. In the United States, there is now a heated discussion about the quality of the granted patents, since, in the opinion of critics, the inventive step is not given in cases such as one-click. “There are studies that suggest that the European Patent Office has the lowest level of inventiveness,” comments Pilch. Even the US patent office is sometimes more restrictive.

Betten does not want to accept these allegations: In Europe, patents are being examined more thoroughly. In addition, there is the possibility of objection, which does not exist in this form in the United States. "This means that every third party can tell the examiner the state of the art or challenge the patent with an objection, for example because it is not new or inventive." This is particularly important in the area of ​​business methods.

In general, there are more effective correction options for unjustifiably granted patents on the old continent. Betten: “Of course, inventiveness must be guaranteed. If it is only a small development, no patent may be granted. ”In the case of Amazon, the US patent examiner in charge did not work properly. The European Patent Office has objected to the invention as not eligible for protection.

Lutterbeck recommends a compromise in his report. Dealing with the source code of computer programs could be privileged under patent law. The production, offering, placing on the market, possessing or introducing the source text in its respective form of expression must be excluded from patent protection ("source text privilege"). According to this, non-commercial users could use a program for private purposes without patent restrictions. Commercial users, on the other hand, would have to obtain the consent of the patent holder to use the software.

Betten believes this is a viable option. The source code of open source software could also be excluded from patent protection. This would relieve a programmer of the fear of violating patents while writing. For him, that doesn't mean that the organization that brings the finished product to market doesn't have to check the code for patent infringements. Companies like Suse or Red Hat also had the necessary resources, says the lawyer. "Everyone else has to do that too." The patent holders could live with such a regulation as long as they are not forced to publish the source code.

For Pilch, on the other hand, the Lutterbeck proposal “cannot be reconciled with the open source principles”. These also included the right to use the programs. "There is no reason not to stick to the law in force."

The question of whether a change in the law is even necessary has not yet been clarified for many politicians. First of all, it should be examined what economic consequences a change in the patent laws would have, explains Weber-Cludius. This has not yet happened to a sufficient extent. The important question, for example, is whether certain limits do not have to be drawn in order to avoid negative economic effects. "We have to consider whether legal practice is sensible from an economic policy point of view."

Tauss takes a similar position, but at the same time criticizes the actions of the EU institutions. Before any decisions can be made, one must take note of all further reports commissioned. At the official level of the European Union, in cooperation with a patent lobby, “unbelievable pressure” is exerted.

There is no public discussion, proposals are only presented to the Commission at official level, other positions are not even considered. Tauss: "That is lobbyism of the worst kind." He defends himself "against the increasing tendency to set facts and to whip through regulations without social, political, economic and scientific debates".

How long the dispute over software patents will last cannot be foreseen. Dietrich Welp from the patent department of the Federal Ministry of Justice does not expect the planned draft EU directive before the end of June. There were delays, among other things, because the 1,600 or so comments could not be evaluated in time.

Even in the Federal Ministry of Economics, no one wants to commit. Weber-Cludius: “We have not yet taken a final position.” The BMWi has commissioned an empirical study from the Fraunhofer Institute that deals with innovations in the software sector. Among other things, it should be clarified how innovations in the different software sectors are developed and protected. Open source is an essential aspect of this.